Last summer, Naomi Osaka withdrew from the French Open, citing struggles with her mental health, and Simone Biles pulled out of events at the Tokyo Olympics, pointing to the mental stress and pressure of the competition. Their admissions of struggling with mental health concerns was groundbreaking for the professional sports culture, and related organizations scrambled on how to respond. As we wrap up mental health awareness month, Morgan Lewis partner Sharon Masling, a leader of the firm’s global sports industry team, discusses why that stigma exists and the legal responsibilities of employers to support their employee’s well-being.
Question: Why was it so unprecedented for Naomi and Simone to withdraw from competition because of their mental health?
Answer: I’ve been practicing disability rights law for 30 years now – since right after the Americans with Disabilities Act was enacted – and there is still tremendous stigma around mental illness. When people like Naomi Osaka and Simone Biles speak publicly and candidly about their own mental health, they, and other athletes like Kevin Love and Michael Phelps, help remove that stigma. They are creating awareness that high-level athletes struggle with mental health issues, and they are creating a space in which people can talk about their own struggles. By putting these issues out in the open, they help other athletes feel empowered to talk about their challenges, and perhaps even more importantly, to seek help. Having these conversations publicly makes it clear that acknowledging mental health issues is not a sign of weakness, but of strength.
Q: How can teams support the mental well-being of their employees?
A: Historically, athletes have been given greater support for their physical health. Physical injuries – like a broken bone or strained ligament – are easier to diagnose and treat. Mental health is more amorphous. Even when athletes feel comfortable coming forward with concerns about their mental health, treatment often requires a number of modalities such as individual therapy, group therapy, biofeedback, and adequate sleep and nutrition; trial and error to find the right medication; and/or ongoing support.
Q: What legal protections do athletes have when they raise mental health concerns?
A: High schools and universities are generally covered by Section 504 of the Rehabilitation Act if they receive federal financial assistance, and they often are also covered by Title II or III of the Americans with Disabilities Act, which apply to state and local governments (including public schools and universities) and places of public accommodation (including private schools and universities), respectively. Employers, such as professional sports teams, are covered by Title I of the ADA. The ADA specifically prohibits pre-employment inquiries about disability and has strict confidentiality requirements for employers to maintain that information.
There are a few key provisions in these laws that protect individuals with mental health conditions. First is the general non-discrimination requirement. A person cannot be discriminated against or treated worse because of their disability. Second, there is a requirement to provide reasonable accommodations in the employment setting, or make modifications to policies, practices, or procedures in the public accommodations context. Accommodations and modifications include changes in how things are customarily done or adaptive equipment that will allow the athlete to perform their job or fully participate. For example, it might mean allowing Naomi Osaka to skip a media briefing or Royce White to drive instead of fly to his games. In the university context, it might mean allowing an athlete to skip a morning practice if their medication impacts their sleep schedule or miss an afternoon practice if they need to attend group therapy.
Of course, accommodations do not have to be provided if they would pose an undue hardship to the employer or require a fundamental alteration to the program or practice. For example, that was the key issue in the Supreme Court case involving Casey Martin, where the question was whether allowing Martin to use a golf cart would fundamentally alter the Professional Golf Association (PGA) tournament.
For proactive teams or sports programs looking to support the mental health of its people, they should follow the “four A’s” set out by the Department of Labor: create awareness and a supportive culture; provide reasonable accommodations; offer assistance to support athletes; and provide access to treatment.
